James Madison

I. Moments after Justice John Paul Stevens announced his intention to retire from the Supreme Court, Republican senators warned President Barack Obama not to appoint a judicial activist to replace him. Senator Orrin Hatch promised Obama “a whale of a fight if he appoints an activist to the court” and Senator Mitch McConnell warned that “Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an evenhanded reading of the law." But Hatch and McConnell’s definition of “judicial activism” is topsy-turvy.

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States of Anarchy

Historical amnesia is as dangerously disorienting for a nation as for an individual. So it is with the current wave of enthusiasm for “states’ rights,” “interposition,” and “nullification”—the claim that state legislatures or special state conventions or referendums have the legitimate power to declare federal laws null and void within their own state borders. The idea was broached most vociferously in defense of the slave South by John C.

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Madison Weeps

"Among the numerous advantages promised by a well-constructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction," James Madison wrote in Federalist Number 10. "The friend of popular governments never finds himself so much alarmed for their character and fate as when he contemplates their propensity to this dangerous vice." Consider us alarmed. Our sense of alarm has been growing for some time. From the moment Barack Obama entered the White House, the Republican Party has cast itself as the Party of No.

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The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 By John Yoo(University of Chicago Press, 366 pp., $29) In 2002, the Department of Justice's Office of Legal Counsel indicated that as commander-in-chief of the Armed Forces, the president has the power to engage in coercive interrogation, even torture—and that Congress lacks the power to limit that authority.

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by Jeffrey Rosen

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Correspondence

Wedlocked I appreciate Richard A. Posner’s respectful review of my book, Same-Sex Marriage and the Constitution (“Wedding Bell Blues,” December 22). Nonetheless, I believe he misses the mark in several ways. Marriage is one of life’s most important relationships, and social science has amply documented its positive effects on people’s health, happiness, and longevity. Posner says this is irrelevant to the debate over same-sex marriage because “all of the studies are of heterosexual marriage.” Of course they are––because gays and lesbians are forbidden to marry.

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Second Thoughts

So what does the Second Amendment mean? A lot, says the National Rifle Association. Not much, say gun-control groups. Until recently, it didn't much matter who was right--on all but the mildest of measures, the NRA had the votes (and the cash), and that was that. Then came Littleton. Now proposals for serious federal gun controls are in the air. Thus far, the House and Senate have failed to agree on any specific gun measures, and whatever Congress ultimately decides in conference promises to be modest at best, targeting only gun shows and youngsters.

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Second Thoughts

Akhil Reed Amar examines what the right to bear arms really means.

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Originalist Sin

A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia (Princeton University Press, 159 pp., $19.95) Original Meanings: Politics and Ideas in the Making of the Constitution by Jack N. Rakove (Knopf, 420 pp., $35) We are all originalists now. That is to say, most judges and legal scholars who want to remain within the boundaries of respectable constitutional discourse agree that the original meaning of the Constitution and its amendments has some degree of pertinence to the question of what the Constitution means today.

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Thomas Jefferson a film by Ken Burns (PBS) The Long Affair: Thomas Jefferson and the French Revolution, 1785-1800 by Conor Cruise O'Brien (University of Chicago, 367 pp., $29.95) Thomas Jefferson and Sally Hemings: An American Controversy by Annette Gordon-Reed (University Press of Virginia, 279 pp., $29.95) American Sphinx: The Character of Thomas Jefferson by Joseph J. Ellis (Knopf, 351 pp., $26) I. Especially during his troubled second administration, Thomas Jefferson received a lot of hate mail.

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